Pennesi v R

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 10 September 1993
• Court: Grand Court (Cayman Islands)
• Date: 10 September 1993

Grand Court

(Smellie, J.)

PENNESI

and

R.

J. Furniss for the appellant;

S. Bulgin, Crown Counsel, for the Crown.

Cases cited:

(1) Fiallo v. R., 1986–87 CILR 253.

(2) R. v. Croydon Crown Court, ex p. Clair, [1986] 1 W.L.R. 746; [1986] 2 All. E.R. 716; (1986), 83 Cr. App. R. 29, observations of Croom-Johnson, L.J. considered.

(3) R. v. ThompsonUNK(1964), 6 W.I.R. 381.

(4) Ritch v. R., 1992–93 CILR N–9.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.169: The relevant terms of this section are set out at page 553, lines 1–3.

Criminal Procedure-appeals-absence of appellant-court may hear appeal in absence of appellant-no abuse of process if appellant has served sentence before going abroad, no likelihood of imposition of more severe sentence and merely seeks to clear name

The appellant appealed against his conviction in the Magistrate”s Court, George Town for indecent assault.

The appellant resided abroad but was on holiday in the Cayman Islands when the alleged offence occurred. He was convicted and sentenced to six months” imprisonment suspended for two years and fined $1,000 with four months” imprisonment in default, with a recommendation for his deportation. He paid the fine and left the Islands voluntarily, following which he appealed against conviction and sentence.

On the hearing of the appeal, the appellant appeared only by counsel and in consequence the court, of its own motion, considered whether it should hear the appeal while the appellant remained outside its jurisdiction.

Counsel for the appellant submitted that the appellant was entitled to be heard but the court and both counsel acknowledged that there was no judicial pronouncement or legislation on the point in the Cayman Islands.

Held, allowing the appeal to proceed:

(1) The jurisdiction and powers of the court on hearing appeals from the Summary Court were statutory but the statutes made no provision for an appellant to have his appeal heard in absentia. Section 169 of the Criminal Procedure Code was a procedural provision and did not address the issue. Consequently, the court would be guided by its inherent jurisdiction to prevent an abuse of its process (page 551, lines 31–40;page 552, line 39 – page 553, line 8).

(2) In this case, although the appellant was beyond the court”s jurisdiction, there was no question of his not complying with an existing order or any order that the court might make since (a) having paid his fine, there remained no aspect of his sentence with which he had not already complied; and (b) it was unlikely that the court would impose a more severe sentence on appeal. On the other hand, it was important that he should have the right to have a criminal conviction removed from his record if there were found to be merit in his appeal and, not having been bailed to appear on appeal, there was nothing which expressly required his presence. He had chosen to be represented by counsel so that his appeal could be heard and the matter could be properly disposed of in that way. Accordingly, the hearing of the appeal would not amount to an abuse of process (page 552, lines 7–38).

35	SMELLIE, J.: The appellant was convicted before the Sum-
mary Court on September 24th, 1992 for the offence of indecent
assault. He was sentenced to six months” imprisonment sus-
pended for two years and fined $1,000 or four months” imprison-
ment in default of payment. The learned magistrate also
40	recommended deportation.
The incident which is the subject of the charge involved a

female employee at a local hotel where the incident occurred and

where the appellant, a visitor to the Islands, was

...